Citation Nr: 1302185 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-28 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased evaluation for residuals of a fracture of the right tibia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from September 1973 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims file. In September 2010 and again in March 2012, the Board remanded the matter for further development and adjudication. As to the issue decided below, the Board finds that the mandates of the remand were adequately addressed. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Veteran was examined and the Board finds the examination report to be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The case has been returned to the Board for further appellate action. FINDING OF FACT Residuals of a right tibia fracture are manifested by limitation of flexion of the knee; flexion has not been limited to less than 45 degrees; neither malunion nor non-union of the right tibia has been shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a right tibia fracture are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in March 2006, prior to the initial adjudication of the claim. The record also reflects that the Veteran's VA and private treatment records have been obtained. The Veteran was provided an opportunity to set forth his contentions during the hearing before a Decision Review Officer at the RO. In addition, the Veteran was provided appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board concludes that VA has complied with its duty to assist the Veteran in the development of the claim. Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under Diagnostic Code 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion requiring brace. The diagnostic code also provides for 30, 20, and 10 percent ratings for malunion of the tibia and fibula with marked, moderate, and slight knee or ankle disability, respectively. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The VA General Counsel has held that separate ratings under 38 C.F.R. Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Additionally, VA General Counsel opinions provide for separate evaluations for knee instability and knee arthritis in certain cases. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257 (2012); see also VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a disability rating under Diagnostic Code 5257 for instability of the knee is in effect, and there is x-ray evidence of arthritis, a separate rating for arthritis based on painful motion can be assigned under 38 C.F.R. § 4.59). Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a noncompensable (0 percent) disability rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the leg limited to 30 degrees warrants a 20 percent disability; and flexion of the leg limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable (0 percent) disability rating; extension of the leg limited to 10 degrees warrants a 10 percent disability rating; extension of the leg limited to 15 degrees warrants a 20 percent disability rating; extension of the leg limited to 20 degrees warrants a 30 percent disability rating; extension of the leg limited to 30 degrees warrants a 40 percent disability rating; and extension of the leg limited to 45 degrees warrants a 50 disability rating. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Other impairment of the knee is assigned a 30 percent evaluation for severe recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; or a 10 percent evaluation for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Evidence In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran had an orthopedic VA examination in March 2006. On examination it was noted that he had leg length inequality and the examiner stated that surprisingly the right lower extremity was longer than the left. It was noted that there was no evidence of malunion or non-union. The examiner stated that the Veteran had full painless range of motion of the right knee from full extension to 135 degrees of flexion. Ankle dorsiflexion was to 20 degrees and plantar flexion was to 40 degrees. There was no evidence of ankylosis. X-rays showed fracture of the mid tibial shaft healed with slight persistent lateral offset, and mild lateral angulation of the distal fragment. The diagnostic impression was, healed right tibia fracture. The Veteran testified before a Decision Review Officer at the RO in December 2006. He testified that he had right leg pain. He discussed the medication he takes and he denied having instability of the leg. A complete transcript is of record. The Veteran was examined by VA in November 2010. His medical records were reviewed. The Veteran reported that his right knee disorder was worsening. His history was noted. He complained of pain. The examiner noted that there were no flare-ups and no evidence of leg shortening. There was no malunion or non-union. There was no genu recurvatum. X-rays showed an old well healed fracture of the midshaft of the right tibia with some minor lateral displacement and angulation. The diagnosis was, fracture, right tibia with residuals. The Veteran was examined by VA in April 2012. The Veteran denied having flare-ups of the disorder. Flexion of the right knee was to 140 and there was no evidence of painful motion. Right knee extension was to 0 degrees with no evidence of painful motion. The examiner stated that the Veteran did not have additional limitation of motion following repetitive-use testing and that he did not have any functional loss or impairment of the knee or lower right leg. He had no tenderness or pain to palpation. Muscle strength was 5/5 on flexion and extension. Instability tests were normal. There was no evidence or history of recurrent patellar subluxation/ dislocation. There were no meniscal conditions. There was no surgery or scarring. There was no X-ray evidence of degenerative arthritis or patellar subluxation. The examiner stated that the disorder did not impact on the Veteran's ability to work. Discussion The Veteran's residuals of right tibia fracture have been rated as 10 percent disabling under Diagnostic Code 5262. Under this diagnostic code, a 10 percent rating is assigned for malunion of the tibia and fibula with slight knee or ankle disability. 38 C.F.R. § 4.71a. Here, the medical evidence shows that the service-connected residuals of right tibia fracture could include both right knee and right ankle impairment. Thus, the Veteran could be assigned separate ratings for the manifestations of the disability on the right knee and right ankle if the symptomatology does not overlap. Here, however, the Board notes that examinations have reflected that the Veteran currently has neither nonunion nor malunion of the tibia and fibula and that the disability has resulted in no ankle impairment. As such, the Board finds that the Veteran is best rated directly under the Diagnostic Codes pertaining to disability of the knee. Considering the evidence of record, the Board finds that more than a 10 percent rating for the Veteran's residuals of a fracture of the right tibia is not warranted at any point pertinent to the current claim for increase. A rating greater than 10 percent is not assignable under Diagnostic Codes 5260 and a separate compensable rating is not warranted under Diagnostic Code 5261. The evidence shows that the Veteran has had normal extension of the right knee and normal or almost full flexion of the right knee, from 0 degrees of extension to 135 or 140 degrees of flexion, on examination, with no pain on flexion and extension. The Veteran has denied flare-ups resulting in decreased motion. On VA examination in 2012, it was noted that there were no flare-ups and no functional impairment. There was no further decrease in range of motion due to pain or on repetitive motion. Even when considering the DeLuca factors, there is simply no indication that he has any limitation of extension or that his limitation of flexion has more nearly approximated limitation to 30 degrees than limitation to 45 degrees, as required for a higher rating under Diagnostic Code 5260. Thus, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a higher rating under Diagnostic Code 5260 or a separate compensable rating under Diagnostic Code 5261. Furthermore, as there is no evidence that the right knee disability involves any ankylosis, dislocated cartilage, or genu recurvatum, evaluation of the disability under Diagnostic Code 5256, 5258, 5259, or 5263 is not warranted. The disability also is not shown to involve any other factors that warrant consideration of any other provisions of the rating schedule. Instability of the right knee is not claimed or shown on examination. (Diagnostic Code 5257). Further, arthritis has not been shown by X-ray evidence. (Diagnostic Code 5003). The Board has reviewed all the evidence in the Veteran's claims file and in his Virtual VA file. VA treatment records dated from 2005to 2012 have been reviewed. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis has focused specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The VA records provide no evidence of impairment warranting more than the assigned rating of 10 percent. Consideration has been given to assigning a staged rating; however, at no time during the period under review does the disability warrant a rating in excess of 10 percent under the schedular criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his claimed right knee disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge; the Board finds that the Veteran's reports have been credible. However, neither his statements more the medical evidence shows that he has sufficient impairment to warrant more than the assigned rating of 10 percent. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The record reflects that the manifestations of the disability are those specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An increased evaluation for residuals of a fracture of the right tibia is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs